Could This Be the Year that Texas Repeals its Sodomy Ban?

It's been a decade since the Supreme Court, in Lawrence v. Texas, struck down the state's law banning sodomy and "homosexual conduct" as an unconstitutional violation of privacy.

Texas has since stopped enforcing the law, but not everyone got the memo. In 2009, two men were kicked out of an El Paso taco joint and threatened with criminal charges under the anti-sodomy law for kissing in public, resulting in a lawsuit against the city that was ultimately settled. Governor Rick Perry dismissed the Supreme Court's decision as the product of "nine oligarchs in robes." And Texas remains one of four states -- Oklahoma, Montana and Kansas being the others -- that still have unconstitutional gay-sex bans on the books.

"It has been used to harass, demean and discriminate against people because of their sexual orientation," says Chuck Smith, executive director of Equality Texas, a gay rights lobbying group in Austin.

It's not that Democratic legislators haven't tried to have it removed. Bills have been filed in each of the past three legislative sessions to do just that. In 2011, bill supporters Garnet Coleman and Jessica Farrar, both House Democrats, were able for the first time to get a committee hearing, but made it no further.

But Smith says the prospects are slightly more positive this year. The first bill seeking to repeal the anti-sodomy law was filed this morning by Senator José Rodriguez, a Democrat from El Paso, marking the first time the issue has been taken up by the Senate.

Smith calls that development "encouraging," particularly because the bill would likely go before the Criminal Justice Committee, which is chaired by Houston Democrat John Whitmire, who'd be likely to give it a friendly ear.

Still, Smith's not quite ready to put odds on its passage.

"I am hopeful that the combination of Senator Rodriguez and Senator Whitmire can make an impassioned plea and can speak to the reality that it makes absolutely no sense to have an unconstitutional provision on our books."

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The reason why the law, though unenforceable since the Supreme Court decision, is still used to harass gay people in this state is because it effectively outlaws homosexuality itself, not just the act of sodomy. If you're on a date with a same-sex partner, and you kiss your partner in public, that could reasonably be argued as intent to break the law.

You could also be denied a job, housing, or prohibited from adopting children because of your sexual orientation. You would be unindicted, but a landlord could interpret the law to mean that a same-sex couple sharing a bedroom constitutes intent. (The law makes no distinction between public and private.) If the police learn you're in a same-sex relationship, then that could constitute probable cause to kick down your door and arrest you.